The claimant had been summarily dismissed. His application at first made no mention of a complaint that it had related to his trades union activities. He wrote to the secretary seeking amendment of his claim to include a claim that his dismissal was automatically unfair by reason of those activities. By this time the three month limit had expired. The employer appealed the consent given.
Held: The application to amend should not have been granted in this particular case. Though there was no express requirement for the Secretary to give notice to the other side before making such a decision, his discretion had to be exercised judicially, and natural justice would normally, but not always, require such a decision to be made only once both parties had had opportunity to make representations. As to the particular application, the tribunal should take into account all factors, including its nature, any time limits, and the precise circumstances in which the application was made. The tribunal would then have to balance the injustice and hardship on either side of making or refusing an application. In this case no explanation had been given for the omission, and leave should not have been granted.
Mummery J P said: ‘Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.’ and ‘What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant.
The nature of the amendment. Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.
(b) The applicability of time limits. If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, e.g., in the case of unfair dismissal, section 67 of the Employment Protection (Consolidation) Act 1978.
(c) The timing and manner of the application’.
Mummery J P
[1996] IRLR 661, [1996] ICR 836, [1996] UKEAT 151 – 96 – 0205
Bailii
Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993
England and Wales
Cited by:
Cited – Swiss Re Life and Health Ltd v A H Kay EAT 11-Jul-2002
The claimant solicitor had alleged disability discrimination, but several months later applied to amend his claim, to include a claim for unfair dismissal. The respondent appealed permission to do so.
Held: The EAT was being asked to interfere . .
Cited – C Argenio v The NEC Group Ltd, Symphony Hall (Birmingham) Ltd EAT 16-Jul-2002
EAT Procedural Issues – Employment Appeal Tribunal
The appellant appealed a dismissal of his application to add a claim for disability discrimination, and sought to adduce additional evidence on the appeal. . .
Cited – Street v Derbyshire Unemployed Workers Centre EAT 22-Sep-2003
The employee claimed that the behaviour which gave rise to her dismissal was a protected disclosure, and that her motive was irrelevant.
Held: The fact that what was disclosed was true was not conclusive to protect the disclosure. The court . .
Cited – Transport and General Workers Union v Safeway Stores Ltd EAT 23-Mar-2007
EAT Practice and Procedure – Amendment
Safeway closed a depot, leading to a large number of redundancies. The Union alleged that consultation was inadequate. Proceedings were initially commenced claiming only . .
Cited – Argyll and Clyde Health Board v Foulds and others EAT 11-Aug-2006
EAT Claimant sought to add a new respondent by way of amendment, almost seven months after he was dismissed by the existing first respondents and some four months after he had lodged his claim with the tribunal. . .
Cited – Heald Nickinson Solicitors v Summers and others EAT 21-May-2002
The firm of solicitors appealed an order in which they had been substituted as defendants to a claim for unfair dismissal. They said they had been given no opportunity to object. They had taken over part of a firm which had got into difficulties and . .
Cited – James v Blockbuster Entertainment Ltd CA 23-Oct-2008
The claimant renewed his application for leave to appeal.
Held: The claimant’s first ground was unarguable. His original application failed to comply with the requirements of the 2002 Act. On the second ground, the tribunal had disagreed with . .
Cited – Balamoody v Manchester Health Authority EAT 2-Mar-1999
The claimant appealed against orders striking out his complaint of unlawful racial discrimination. He had owned a nursing home regulated by the respondent authority. A senior white employee had broken regulations regarding safekeeping of drugs, but . .
Cited – Prakash v Wolverhampton City Council EAT 1-Sep-2006
EAT The Claimant was employed on a fixed term contract. During the terms of the contract he was dismissed for misconduct and made an application to the Employment Tribunal (ET) claiming unfair dismissal. He . .
Approved – Ali v Office of National Statistics CA 21-Oct-2004
The court set out the proper approach to an application for leave to amend an originating application before the Employment Tribunal. . .
Cited – Sodexho Ltd v Gibbons EAT 14-Jul-2005
EAT Deposit ordered. Order lost in post due to the Claimant putting wrong post-code on ET1. Review. Distinguishing Judgments from Orders. Strike-out. Extending time. . .
Cited – Edwards v London Borough of Sutton EAT 12-Jul-2012
EAT PRACTICE AND PROCEDURE – Amendment
An application to amend was made which the Employment Tribunal Judge had refused purely on the basis that it involved new claims; that was clearly wrong. She should . .
Cited – Science Warehouse Ltd v Mills EAT 9-Oct-2015
EAT Practice and Procedure : Amendment – Amendment of an ET claim to add a new cause of action – ACAS Early Conciliation (Section 18A Employment Tribunals Act 1996 (as amended))
At a Preliminary Hearing, . .
Lists of cited by and citing cases may be incomplete.
Employment
Leading Case
Updated: 02 November 2021; Ref: scu.183143
